Maryland and the District of Columbia, along with Virginia, North Carolina, and Alabama, continue to adhere to the minority rule of tort causation known as “contributory negligence.” “Contributory negligence, if proved, is a complete defense that bars a plaintiff’s recovery in a negligence action.” Warsham v. Muscatello, Inc., 985 A.2d 156, 167 n. 10 (Md. App. 2009). Contributory negligence has been defined traditionally as the failure on the part of the plaintiff to observe ordinary care for [his or her] own safety. Kasten Construction Co. v. Evans, 273 A.2d 90, 92 (Md. 1971); Menish v. Polinger Co., 356 A.2d 233, 236 (Md. 1976). At its heart, contributory negligence is “the doing of something that a person of ordinary prudence would not do, or the failure to do something that a person of ordinary prudence would do under the circumstances.” Potts v. Armour & Co., 39 A.2d 552, 556 (Md. 1944). “Contributory negligence, if present, defeats recovery because it is a proximate cause of the accident; otherwise, the negligence is not contributory.” Batten v. Michel, 292 A.2d 707, 711-12 (Md. App. 1972). In other words, if the plaintiff contributes even slightly (even by so little as 1%) to the happening of his or her injury, he or she is absolutely barred from recovery.
“The burden of proving contributory negligence is on the defendant.” Reiser v. Abramson, 286 A.2d 91, 93 (Md. 1972). It is important to stress that “[i]t is not every action on the part of a litigant which an opponent by way of ‘second guessing’ or hindsight may successfully label as contributory negligence.” Rogers v. Frush, 262 A.2d 549, 552 (1970). “[I]n measuring contributory negligence, the standard of care to be used as the criterion is that of an ordinarily prudent person under the same or similar circumstances, not that of a very cautious person.” Menish, 356 A.2d at 236.